My journey to 'Smiling'

[jimfishybob]

Data Protection Act letter sent on 19/05/2006

Followed up by sending a secure message on the 22/05/2006 explaining that I was aware the letter and cost had been delivered to them and I will expect a reply before 30/06/2006.

They owe me £1415 back to mid-2004, (excluding 'commission' charges, I haven't totalled them up yet), so I shudder to think what they owe me for the previous 6 years!

[Wolfy]

It seems you and I are in exactly the same boat, even down to the amounts claimed from Mid 2004 . Good luck in your quest to get YOUR money back.

[jimfishybob]

Right back atcha!

[jimfishybob]

Bit of a hiccup s i've changed address since I sent the Data Protection Act, though I knew this was going to happen and I told them about it in the original request, just sent them a secure message:-

Hi,
Please be aware that as stated in my letter dated 19/05/2006 I have today changed my contact details as I have moved home. I trust that the fact I have done this online from within my account is a sufficient form of identification. Please can you confirm by return that the Data Protection Act Subject Access Request will be posted to my new address. However, my mail will be redirected from my previous address for the next two months and as there are only 33 of the statutory 40 days remaining, either address would find me.
Many Thanks
Jimfishybob

Does that about cover it?

[jimfishybob]

Prelim sent today, (06/06/06, (hope that isn't an omen))

Mixture of Govan Law and BAG first letter.

14 days and counting....

£2000 (ish)

[jimfishybob]

Letter recieved today,

"Sorry you've felt the need to complain....

...looking into it...

...regulated by FSA...."

etc...etc...


Pretty quick response though.

[jimfishybob]

Er.....

....Just checked my account this morning and there's a friendly refund, (unrelated), from the lovely people at SKY. This has brought me back into credit. However, there is also a 'Unpaid Commission Item' for £25 from Smile. I have no idea where this has come from, and can find no notification of it being taken. The only possibility I can think of is that on 10/04/06 I had a DD refused for £9 and now, two months later and without warning, they've charged me for it. Can someone just confirm that this falls within Section 5.5 of the banking code before I ring them and ask what they're playing at?

Thanks

[jimfishybob]

Hmmm...

Spoke to Smile this morning and both operators who dealt with me were surprisingly sympathetic to my call, (I have names but for obvious reasons I won't use them), and both wished me luck in my claim.

With regards to the above charge, apparently a payment was taken from my card yesterday, (it's a monthly direct debit but paid via my delta card), and as I was already over my limit they paid it but then treated it as though it hadn't been paid and charged me the £25 for the privledge.

When I requested that this charge be refunded as in the first instance I had been given no notification contrary to section 5.5 of the banking code, they agreed to extend my overdraft so I was charged no further charges.

I accepted this but explained that they should still expect me to pursue them for the charge itself.

What I can't get my head around is this:- if i'm being charged a £5/day 'service' charge and they can see i'm over my limit why would they pay it? Further to this why would they pay it and then charge me a returned DD fee for not paying it? I assume this is because of the floor limit on the PDQ system, correct?

May need some help on how to handle this individual charge, should I just include it in the LBA?

[caro]

Yep, just add it on.

[jimfishybob]

Recieved a secure mail today, (day 14, sneaky buggrs), explaining that a letter has been sent and advising me on how to best handle my compliant.

Seems odd, sending me a message to tell me they'd sent a letter, why not just send the contents of the letter in a message?

Anyway, on the assumption that 'the best way to handle my complaint' is to refer it to the F.O.S. i've pre-empted this and sent a reply stating that if this is the case then it's unacceptable as the only forum that can rule on the legality of charges is my local court.

However in the interests of fairness, i've told them, although it's noted they have not commented or even tried to resolve my complaint within the 14 days stipulated, I'm prepared to give them the extra time until this letter arrives.

As a side note, they say this letter will arrive within the next three working days, which would suggest 2nd class post. No sense of urgency these banks!

[jimfishybob]

A reply to my reply:-


Hello Jimfishybob

A letter in response to your complaint has been sent to you already. Please read the letter and if you have any further questions, please let us know.


AKA:- Stop bothering us.

I'm taking spread bets on whether they say no you can't have it and whether they suggest I report it to the Financial Ombudsman.

The odds i'm offering are garbage though.......

[jimfishybob]

It seems I was wrong.....

Dear Jimfishybob,

I'm sorry you've had to write in voicing your concerns.

There has been lots of media coverage about the legality of charges banks apply for customers exceeding their overdraft.

To expedite any possible refund please send your Subject Acces Request to me personally and I will deal with your request as soon as possible.

The address to send it to is:-

Chris Hopkins
Smile Team 314
Po Box 600
Delf House
Skelmersdale
WN8 6GF

At this stage we are required to let you know that smile will regard your complaint as closed if we do not recieve a reply within 8 weeks of this response.

Yours Sincerely

(signed in pen)

Bearing in mind that this was recieved 16 days after they recieved the pre-lim, what next?
Why are they asking me to send them information that they sent to me?
Is this just to delay things?
Should I send a copy of the S.A.R - (Subject Access Request) with an LBA?

[caro]

I think this is a case of the left hand not knowing what the right hand is doing. If your LBA is due to be sent, then send it and forget the S.A.R - (Subject Access Request) request if you have all the information you need. You need to stick to your own timetable.

[jimfishybob]

I've decided that it's going to ultimately reflect better on me if i'm shown to be reasonable:-

LETTER BEFORE ACTION
SORT CODE XXXXXX
ACCOUNT NUMBER XXXXXXXX

Dear Chris,

Thank you for your letter dated 21st June 2006 and I enclose a copy of Subject Access Request you require and for your convenience I have also included a breakdown of the charges I am claiming totalling £1959.50. However I would ask you consider the following points:-


Firstly, if your aim, as you suggest, is to expedite a refund why was this request not sent via your 'secure message' service, allowing me to send you the information in a more timely manner?

Secondly, why is it necessary for me to provide you with information which you initially provided to me? Surely as a member of the complaints team you have access to this information without my intervention, indeed, the nature of my letter dated 6th June2006 infers my compliance to your access. A more cynical mind would suggest you are seeking to delay my claim to some unspecified end.

I have historically acquiesced to these charges in the belief that as my fiduciary you would act in lawful manner at all times.

Your bank has previously insisted it can impose charges in accordance with its terms and conditions of contract, (secure message dated 31/03/2003). However, those terms and conditions are subject to the common law and the Unfair Terms in Consumer Contract Regulations 1999 (UTCCR). Indeed, the UTCCR takes precedence over any contractual term where the court finds a term to be ‘unfair’. The court can then treat that term of contract as having no legal effect.

The question that arises is this: are your charges unfair in terms of the UTCCR? On the 26th July 2005 the OFT stated that 'a charge is likely to be disproportionately high if it is more than a court would be likely to award if the lender sued the card holder for breach of contract'. So what would the court award your bank for my minor breach of contract?

As you will be aware, the court will only award (in a non-negotiated consumer contract) a sum to reimburse actual loss. Your charges do not reflect actual loss. Rather, they include a massive profit margin or penalty. Alternatively, they subsidise the bank's global debt recovery costs and lending losses. There is parliamentary evidence for this assertion.

When the UK banks gave evidence to the House of Commons Treasury Committee on how bank charges were calculated they said:

"[bank charges] are going to pay for all the people we have who pursue debt, collect debt, speak to customers and chase payments. The way these charges are arrived at is by taking these total costs and making some assumptions about the volume that is going to come through to arrive at the individual charges" (House of Commons, 2nd report, 25 January 2005, paragraph 50).

Accordingly, your charges do not reflect the actual loss in my case. They are an unlawful penalty charge designed to recover money unconnected with the conduct of my account.


I require payment in full of this money. If you do not comply fully within the next 10 days I shall begin payment action against you for the full amount, plus interest, plus my costs. In that eventuality, I would require you to lodge in court financial vouching for the actual loss sustained in my case.

Will keep you posted.....

[Rusty-London]

Jim, In your letter you remark that the charges are illegal, I thought they were unlawful rather than illegal. Just a small point, but you don't want the bank picking it up!

[jimfishybob]

Good point well made.

Edited.